In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00138-CR
___________________________
DEVONTE WALKER, Appellant
V.
THE STATE OF TEXAS
On Appeal from County Criminal Court No. 1
Tarrant County, Texas
Trial Court No. 1671058
Before Kerr, Bassel, and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION
Appellant Devonte Walker appeals his jury conviction for misdemeanor driving
while intoxicated (DWI), which stemmed from a January 2021 traffic stop. Walker
complains in a single issue that the trial court abused its discretion when it denied his
motion to suppress the results of a breath-specimen test that he argues was obtained
without his voluntary consent. We will affirm.
I. BACKGROUND
Police officer Joseph Dorman conducted a traffic stop on Walker for failing to
maintain a single lane and observed that Walker had “slow, mumbled” speech, dilated
eyes, and that there was a slight odor of alcohol emanating from Walker’s vehicle.
After giving Walker standardized field sobriety tests, Officer Dorman arrested Walker
and placed him in the back of the patrol car. Officer Dorman then read the required
DWI statutory warnings to Walker and provided him with a copy of the warnings.
After Officer Dorman read the warnings, the two had a conversation that lasted
approximately 2 1/2 minutes:1
[Dorman]: I am now requesting a specimen of your breath.
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The audio of this interaction was recorded on a dash-cam from inside Officer
Dorman’s vehicle and constituted the only evidence considered by the trial court
when it initially denied Walker’s motion at a pre-trial suppression hearing. However,
after Officer Dorman testified at trial, Walker reurged his motion to suppress, which
the trial court again denied. Accordingly, our ruling will account for all evidence
adduced at the pre-trial hearing and at trial prior to the trial court’s second denial. See
Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996); Siddiq v. State, 502 S.W.3d
387, 392 (Tex. App.—Fort Worth 2016, no pet.).
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[Walker]: And the options are breath or blood?
[Dorman]: I’m asking for a specimen of your breath. It’s kind of a little easier
on both of us. But it’s up to you.
[Walker]: Ok. What is the blood option? What does that inquire? I’m sorry.
I’m just asking. Like I said, I’m working on my doctorate, so I just like facts.
[Dorman]: Right. I gotcha. So, I’m asking for a specimen of your breath. I’m
not asking for a specimen of your blood. With the breath specimen you give a
specimen in just a few minutes if you consent to it and then that tells us immediately
what it is. I’m not really asking for a blood specimen right now. So, if you do the
breath specimen, cool, if you decide you don’t want to do the breath specimen, then I
have to apply for a warrant. And basically, what this paper says right here is that if
you deny giving a breath specimen that your license will be suspended.
[Walker]: If I deny, my license will be suspended?
[Dorman]: Right. That is what this says right here. But that is up to you. I
can’t tell you one way or another whether to do it or not. That is totally up to you.
[Walker]: Right. I understand.
[Walker then begins reading aloud a portion of the statutory warnings.]
[Walker]: Sorry. I’m just reading.
[Walker continues reading the warnings aloud.]
[Walker]: Sorry. I’m trying to stay warm.
[Dorman]: I gotcha. So, would you submit to the breath specimen or no?
[Walker]: I’d rather do just the blood.
[Dorman]: Right. I’m asking for a breath specimen.
[Walker]: Yeah. No. I refuse the breathalyzer and I’ll just do the blood.
[Walker continues reading the warnings aloud.]
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[Dorman]: So, no on the breath specimen?
[Walker continues reading the warnings aloud.]
[Walker]: So, it’s the same thing for the breath and the blood?
[Dorman]: Right, so it’s my choice whether I ask you for breath or blood. I’m
asking you for a breath specimen.
[Walker]: I’ll take a breath specimen, sir.
[Dorman]: You will or will not?
[Walker]: I will.
[Dorman]: Ok.
At trial, Officer Dorman recalled that, though Walker initially requested to
provide only a blood specimen, Walker continued to refer back to the statutory
warnings after Dorman made it clear that only a breath specimen was being sought.
Officer Dorman continued:
I believe [Walker] - - he was unsure of his decision whether or not he
wanted to give the breath specimen. The final decision, at the end of the
video, I asked him twice for clarity if he was going to give a breath
specimen, and he consented to a breath specimen.
Ultimately, Walker provided two breath specimens for testing; the results were
admitted at trial and showed that his blood-alcohol content was 0.143 and 0.141. The
jury returned a guilty verdict and assessed Walker’s punishment at 30 days in jail,
which was probated for 12 months.
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II. STANDARD OF REVIEW AND RELEVANT LAW
A. STANDARD OF REVIEW
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.
2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost
total deference to a trial court’s rulings on questions of historical fact and application-
of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but
we review de novo application-of-law-to-fact questions that do not turn on credibility
and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.
Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
When, as here, there are no written factual findings to explain the trial court’s
decision, we imply any such findings that find support in the record. Meekins v. State,
340 S.W.3d 454, 460 (Tex. Crim. App. 2011). We will uphold the trial court’s finding
of voluntariness unless it is clearly erroneous. Fienen v. State, 390 S.W.3d 328, 335
(Tex. Crim. App. 2012).
B. BURDEN OF PROOF AND LAW ON CONSENT
The validity of an alleged consent is a question of fact, and the State must
prove voluntary consent by clear and convincing evidence. Id. at 333. A driver’s
consent to a breath or blood test must be free and voluntary—i.e., free from physical
or psychological pressure from law enforcement. Id. Critical to a consent analysis is
that the factfinder must consider the totality of the circumstances to determine
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whether consent was given voluntarily. Meekins, 340 S.W.3d at 459–60, 460 n.26
(stating that trial courts may consider “numerous factors” to determine the totality of
the circumstances, including: physical mistreatment, use of violence, threats, threats
of violence, promises or inducements, deception or trickery, and the physical and
mental condition and capacity of the defendant). “Accordingly, it follows that,
because the [factfinder] must consider all of the evidence presented, no one statement
or action should automatically amount to coercion such that consent is involuntary—
it must be considered in the totality.” Fienen, 390 S.W.3d at 333.
III. DISCUSSION
Walker argues on appeal that, because he initially refused to provide a breath
specimen, any subsequent requests by Officer Dorman to obtain a specimen were
rendered per se coercive and made Walker’s eventual consent involuntary. Likening
the situation to a custodial interrogation at which the accused invokes the presence of
an attorney, Walker ventures so far as to declare—without authority—that “[i]f a
refusal is made, a specimen shall not be taken according to the Court of Criminal
Appeals.”
Rather than applying the bright-line rule presented by Walker, the trial court
was instead tasked with determining whether the totality of the interaction between
Walker and Officer Dorman presented clear and convincing evidence that Walker
freely and voluntarily consented to giving the breath specimens. See id.
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In this case, Walker does not argue, and the record does not show, that he was
physically mistreated by Officer Dorman; there was no threat, no violence, no
deception, and no promise made to induce Walker into consenting to the testing.
Likewise, no issue has been raised regarding Walker’s mental or physical condition
that would bear upon the question of voluntary consent.
Instead, the evidence showed that Officer Dorman was respectful and cordial
throughout his interaction with Walker. Further, Walker, who was working toward a
doctoral degree at the time, “like[d] facts” and was concerned with making an
intelligent decision regarding whether to consent to giving a breath sample and
whether refusing would result in the suspension of his driver’s license.
After giving consent to an unrequested blood draw, Walker did then refuse to
provide a breath specimen. However, he continued to audibly read the statutory
warnings which prompted Officer Dorman to clarify Walker’s decision by asking, “So,
no on the breath specimen?” Walker, rather than reasserting his refusal, showed his
uncertainty as to the implications of his refusal by asking, “So, it’s the same thing for
the breath and the blood?” After Officer Dorman answered Walker’s question in the
affirmative, Walker immediately consented to providing the breath sample. And
Officer Dorman confirmed at trial that his clarifying questions were reasonable rather
than coercive by explaining that he believed Walker was unsure of his initial decision
to refuse.
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IV. CONCLUSION
Thus, in light of the totality of the interaction between Walker and Officer
Dorman, it was not clearly erroneous for the trial court to find that Walker voluntarily
consented to giving the breath specimen and to deny Walker’s motion to suppress.
We affirm the trial court’s judgment.
/s/ Brian Walker
Brian Walker
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 4, 2022
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